Citation Nr: 21025971 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-09 964 DATE: April 29, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran’s tinnitus was incurred in active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1974 to October 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a virtual hearing held on April 23, 2021. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. As an organic disease of the nervous system, tinnitus is considered a chronic disease for VA compensation purposes. See Fountain v. McDonald, 27 Vet. App. 25 (2015). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the evidence of record supports a grant of service connection for tinnitus. First, there is evidence of a current disability. The June 2017 VA examiner noted that the Veteran endorsed that he experienced tinnitus and had since service. See 38 C.F.R. §§ 3.303 (a), 3.307(a), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent and credible lay statements regarding noise exposure in service. See 38 C.F.R. § 3.303 (a); see also Shedden, 381 F.3d at 1167. Specifically, the Veteran submitted lay statements that his military duties exposed him to grenades and mortars and 102 artillery guns. See VA Form 21-4138 Statement in Support of Claim, received July 2017. The Veteran testified at his April 2021 hearing that he experienced noise exposure in service and that his tinnitus symptoms began in service and continued since service. The Veteran’s military personnel records show he served as a radio telephone operator and field artillery crewman, therefore hazardous noise exposure in service is conceded Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current tinnitus is causally related to service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. The Board notes the Veteran has repeatedly stated that the onset of his tinnitus occurred in service and had continued since that time. 38 C.F.R. §§ 3.303 (b), 3.309(a); Walker, 708 F.3d at 1331. Insofar as there is evidence against the claim, specifically, that the June 2017 VA examiner opined that it was less likely as not that the Veteran’s tinnitus was caused by in-service acoustic trauma, the examiner supported the opinion by noting normal hearing findings during service but did not address the Veteran’s assertion of onset and continuity of tinnitus symptomatology. As such, the Board affords this opinion limited probative weight. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for tinnitus is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.